Judge mulls whether to dismiss Mississippi election dispute

Emily Wagster Pettus, Associated Press

Updated 2:49 pm, Friday, December 2, 2016

JACKSON, Miss. (AP) — A federal judge is considering whether to dismiss a lawsuit over a 2015 Mississippi election that tied, went to a drawing of straws won by the Democratic incumbent and was later reversed by the Republican-led House in favor of the GOP challenger.

Five voters who filed suit early this year are demanding that former Rep. Eaton, D-Taylorsville, be reinstated as a House member in place of Rep. Mark Tullos, R-Raleigh.

Eaton and Tullos ran in District 79 in Smith and Jasper counties, and local election officials originally determined they tied with 4,589 each.

On Friday, U.S. District Judge Carlton Reeves heard arguments over whether he should dismiss the lawsuit.

John Corlew, an attorney for the plaintiffs, said legislators violated his clients' constitutional right of equal protection by tossing out ballots that local officials had ruled were properly cast.

"I cannot believe that a federal court is impotent in the face of the violation of a constitutional right," Corlew said. "That's what this case boils down to."

Michael Wallace, representing Tullos and legislative leaders, said there was no systematic denial of constitutional rights.

"They weren't mistreated under federal law," Wallace said of the plaintiffs. "They were treated evenly. No damage."

Wallace also said legislators cannot be sued for their official actions.

Smith County election officials consulted the secretary of state's office about whether to count affidavit ballots cast by five people who had moved within District 79 but hadn't updated their addresses on election records within 30 days. They were told to count the votes, and they did.

But the chairman of a House committee that considered Tullos' challenge of the election, Republican Rep. Mark Baker of Brandon, said the five votes should not have counted because the voters didn't update their addresses.

The House voted 67-49, mostly along party lines, to declare Tullos the winner. That gave the GOP a three-fifths supermajority in the House, which means Republicans can change tax laws without seeking help from Democrats.

Reeves noted that the 2017 legislative session begins in a month, and said: "I'm going to do my best to get a ruling out as soon as possible."

If Reeves dismisses the lawsuit, Tullos would remain in the House. If Reeves decides to let the lawsuit go forward, he eventually could hear arguments about the merits of the case.

Tullos and other legislators being sued were not in court Friday. Eaton was there, although he is not a part of the case.

"It is my nature to fight for what I believe in," Eaton said after the hearing concluded. "I understand these voters have constitutional rights."